EXHIBIT 10.26.1
OMNIBUS CONSENT AND AMENDMENT TO SECURITYHOLDERS AGREEMENT,
REGISTRATION RIGHTS AGREEMENT, SENIOR MANAGEMENT AGREEMENTS
AND UNIT PURCHASE AGREEMENT
This Omnibus Consent and Amendment to Securityholders Agreement,
Registration Rights Agreement, Senior Management Agreements and Unit Purchase
Agreement (this "CONSENT AND AMENDMENT"), dated as of July 6, 2004, is entered
into by and among Prestige Brands International Holdings, LLC (f/k/a
Medtech/Denorex, LLC), a Delaware limited liability company (the "COMPANY"),
Prestige Brands, Inc., a Delaware corporation ("EMPLOYER"), GTCR Fund VIII,
L.P., a Delaware limited partnership ("GTCR FUND VIII"), GTCR Fund VIII/B, L.P.,
a Delaware limited partnership ("GTCR FUND VIII/B"), GTCR Co-Invest II, L.P., a
Delaware limited partnership ("GTCR CO-INVEST" and together with GTCR Fund VIII
and GTCR Fund VIII/B, the "GTCR PURCHASERS"), GTCR Capital Partners, L.P., a
Delaware limited partnership ("GTCR CAPITAL PARTNERS" and together with the GTCR
Purchasers, the "GTCR Investors"), each of TCW/Crescent Mezzanine Partners III,
L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust III, a
Delaware business trust, and TCW/Crescent Mezzanine Partners III Netherlands,
L.P., a Delaware limited partnership (collectively, the "TCW/CRESCENT
PURCHASERS"), Prestige Preferred Holdings, LLC, a Delaware limited liability
company ("HOLDINGS"), ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(collectively, the "MANAGEMENT INVESTORS").
WHEREAS, on February 6, 2004, the Company indirectly acquired all of
the outstanding shares of capital stock of Medtech Holdings, Inc., a Delaware
corporation, and The Denorex Company, a Delaware corporation, and on April 6,
2004, the Company indirectly acquired all of the outstanding shares of capital
stock of ▇▇▇▇▇▇ Bay Holdings, Inc., a Virginia corporation and ultimate parent
of Prestige Brands International, Inc. (collectively, the "MEDTECH AND PRESTIGE
TRANSACTIONS");
WHEREAS, pursuant to certain Transaction Documents (as defined below),
in connection with the consummation of the Medtech and Prestige Transactions,
the Company issued Class B Preferred Units of the Company ("COMPANY CLASS B
PREFERRED UNITS") to the GTCR Investors, the TCW/Crescent Purchasers and the
Management Investors (each, a "UNITHOLDER" and, collectively, the "UNITHOLDERS")
and entered into a number of the Transaction Documents for the purpose, among
others, of setting forth certain of the rights and obligations of certain of the
Unitholders in their capacity as a member and securityholder of the Company;
WHEREAS, each Unitholder desires to contribute (the "CONTRIBUTION") to
Holdings all of such Unitholder's Company Class B Preferred Units in exchange
for Class B Preferred Units of Holdings ("HOLDINGS CLASS B PREFERRED UNITS"), on
the terms and conditions set forth in the Limited Liability Company Agreement of
Holdings, dated as of the date hereof (the "HOLDINGS LLC AGREEMENT");
WHEREAS, the undersigned, in order to facilitate the Contribution
(among other reasons), have agreed to amend the Transaction Documents in the
manner set forth below; and
WHEREAS, the undersigned desire to make certain other acknowledgments
with respect to the Transaction Documents and to acknowledge and reaffirm the
other terms and provisions of the Transactions Documents.
NOW, THEREFORE, the undersigned, intending to be legally bound, hereby
agree as follows:
1. Reference is hereby made to the following agreements:
A. Each Senior Management Agreement, dated as of February 6, 2004
(as amended by a First Amendment and Acknowledgment to Senior
Management Agreement, dated as of March 5, 2004, and a Second
Amendment and Acknowledgment to Senior Management Agreement,
dated as of April 6, 2004), by and among the Company, Employer
and, as the case may be, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (collectively, the
"INITIAL SENIOR MANAGEMENT AGREEMENTS");
B. The Senior Management Agreement, dated as of March 17, 2004
(as amended by a First Amendment and Acknowledgment to Senior
Management Agreement, dated as of April 6, 2004), by and among
the Company, Employer and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ SENIOR
MANAGEMENT AGREEMENT");
C. The Senior Management Agreement (Co-Investment: Cash), dated
as of April 6, 2004, by and among the Company and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇▇ CASH SENIOR MANAGEMENT
AGREEMENT");
D. The Senior Management Agreement (Co-Investment: Rollover),
dated as of April 6, 2004, by and among the Company and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇▇ ROLLOVER SENIOR MANAGEMENT
AGREEMENT");
E. The Senior Management Agreement (Co-Investment: Rollover),
dated as of April 6, 2004, by and among the Company and ▇▇▇▇▇
▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇ ROLLOVER SENIOR MANAGEMENT AGREEMENT"
and, together with the Initial Senior Management Agreements,
the ▇▇▇▇▇▇ Senior Management Agreement, the ▇▇▇▇▇▇▇▇▇▇ Cash
Senior Management Agreement and the ▇▇▇▇▇▇▇▇▇▇ Rollover Senior
Management Agreement, the "SENIOR MANAGEMENT AGREEMENTS");
F. The Unit Purchase Agreement, dated as of February 6, 2004 (as
amended by a First Amendment, Acknowledgment and Supplement to
Unit Purchase Agreement, dated as of April 6, 2004, and a
Second Amendment, Acknowledgment and Supplement to Unit
Purchase Agreement, dated as of April 6, 2004), among the GTCR
Investors, the TCW/Crescent Purchasers and the Company (the
"GTCR PURCHASE AGREEMENT");
G. The Securityholders Agreement, dated as of February 6, 2004
(as amended by a First Amendment and Acknowledgment to
Securityholders Agreement, dated as of April 6, 2004), by and
among the Company and certain of its securityholders (the
"SECURITYHOLDERS AGREEMENT"); and
H. The Registration Rights Agreement, dated as of February 6,
2004 (as amended by a First Amendment and Acknowledgment to
Registration Rights Agreement, dated as of April 6, 2004), by
and among the Company and certain of its
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securityholders (the "REGISTRATION AGREEMENT" and, together
with each of the agreements referenced above, the "TRANSACTION
DOCUMENTS").
2. Each of the undersigned acknowledges and agrees that he, she or it has
received a copy of each of the Transaction Documents (excluding, with
respect to any Management Investor, any Senior Management Agreement
that does not pertain to such Management Investor) and the Holdings LLC
Agreement and that such party has had ample opportunity to review each
such document or retain counsel to review each such document and to ask
questions and receive answers concerning the terms and conditions of
the Transaction Documents and the Holdings LLC Agreement, as well as
this Consent and Amendment. Each of the undersigned acknowledges and
agrees that this Consent and Amendment, the Transaction Documents and
the Holdings LLC Agreement are interrelated and, when taken together,
determine significant rights and obligations of the undersigned with
respect to his, her or its status as a member and securityholder of the
Company and Holdings (with respect to both the Medtech and Prestige
Transactions and subsequent transactions).
3. Each of the undersigned acknowledges that he, she or it understands the
effects of the amendments to the Transaction Documents implemented by
this Consent and Amendment and hereby consents to each such amendment
and the formation of Holdings (including, without limitation, the
Contribution), and hereby waives any rights he, she or it may otherwise
have under any of the Transaction Documents with respect to such
transactions. The foregoing consent and waiver is expressly limited as
follows: (a) such consent is limited solely to the amendments to the
Transaction Documents described herein and the formation of Holdings
(including, without limitation, the Contribution) pursuant to the terms
and conditions hereof and the Holdings LLC Agreement, as in effect on
the date hereof, and (b) such consent is a limited one-time consent,
and nothing contained herein shall obligate any of the undersigned to
grant any additional or future consent or waiver with respect to any
term or condition of any Transaction Document.
4. Each of the undersigned acknowledges and agrees that each of the
Transaction Documents (other than the GTCR Purchase Agreement) is
hereby amended such that each reference therein to Company Class B
Preferred Units shall instead be a reference to Holdings Class B
Preferred Units issued pursuant to the Holdings LLC Agreement.
5. Each of the undersigned hereby acknowledges and agrees that, for
purposes of Sections 3 and 4 only of the GTCR Purchase Agreement, the
definitions of "Investor Preferred," "Majority Holders," "Restricted
Securities" and "Securities" are hereby amended such that each
reference therein to Company Class B Preferred Units shall instead be a
reference to Holdings Class B Preferred Units issued pursuant to the
Holdings LLC Agreement.
6. Each of the undersigned hereby acknowledges and agrees that Section
3.C. of the GTCR Purchase Agreement (Restrictions) is hereby
supplemented such that Holdings shall not, without the prior written
consent of the Majority Holders, take any action with respect to itself
that the Company is prohibited from taking with respect to itself
pursuant to the terms of Section 3.C. of the GTCR Purchase Agreement.
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7. This Consent and Amendment may be executed in any number of
counterparts (including by means of facsimiled signature pages), which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Consent and
Amendment on the date first written above.
PRESTIGE INTERNATIONAL HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CHIEF EXECUTIVE OFFICER
PRESTIGE BRANDS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CHIEF EXECUTIVE OFFICER
GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR FUND VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
SIGNATURE PAGE TO OMNIBUS CONSENT AND AMENDMENT TO SECURITYHOLDERS AGREEMENT,
REGISTRATION RIGHTS AGREEMENT, SENIOR MANAGEMENT AGREEMENTS
AND UNIT PURCHASE AGREEMENT
GTCR CO-INVEST II, L.P.
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.
TCW/CRESCENT MEZZANINE TRUST III
TCW/CRESCENT MEZZANINE PARTNERS III
NETHERLANDS, L.P.
By: TCW/Crescent Mezzanine
Management III, L.L.C.,
its Investment Manager
By: TCW Asset Management Company,
its Sub-Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO OMNIBUS CONSENT AND AMENDMENT TO SECURITYHOLDERS AGREEMENT,
REGISTRATION RIGHTS AGREEMENT, SENIOR MANAGEMENT AGREEMENTS
AND UNIT PURCHASE AGREEMENT
PRESTIGE PREFERRED HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CHIEF EXECUTIVE OFFICER
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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SIGNATURE PAGE TO OMNIBUS CONSENT AND AMENDMENT TO SECURITYHOLDERS AGREEMENT,
REGISTRATION RIGHTS AGREEMENT, SENIOR MANAGEMENT AGREEMENTS
AND UNIT PURCHASE AGREEMENT